The Right to Counsel and the Responsibility of Police

The moment someone is detained by the arresting officer and before the police administer a breath test, they are required to let detainees know of their right to counsel and their right to contact a lawyer without delay. If the officer neglects to advise the detainee of this right immediately or infringes upon these rights, the breath test results might be inadmissible, resulting in a possible acquittal.

If the detainee expresses an interest in seeking immediate legal advice, the police must refrain from questioning them until they have had the opportunity to speak with a lawyer.

There is a very strong risk that a detainee may incriminate themself when placed in this type of situation, so it is crucial they are reminded of their right to seek the immediate advice of counsel. They should have a clear understanding that they have the right to exercise this opportunity without hesitation in a fully comprehensible manner, before speaking to the police any further.

In many cases, the detainee may not understand this right as explained to them by the officer. In situations where there may be language barriers, or physical or mental disabilities, police must ensure that the detainee is provided with the means to completely and without question, comprehend their right to speak with a lawyer.
In this instance, police need to take the additional steps required to help the detainee understand these rights.
For example, if the person doesn’t understand English, police need to assign a translator to speak to them in their native language, or enlist the help of an officer who practices sign language for those with hearing disabilities.

Canadian law dictates that any person whose first language is not English, have the right to have an interpreter translate the information regarding their right to counsel. The same rule applies to the hearing impaired. Authorities should appoint someone who practices more than merely rudimentary sign language to better explain these rights to them.

If the detainee does not fully comprehend their right to counsel from the outset, they will not be able to make an informed decision whether or not to seek legal counsel. More importantly, they might not understand that they may also exercise their right to remain silent. It is often assumed that those who waive their right to counsel do not have a clear and full understanding of their rights.

The police are also obligated to advise the detainee of all of the services available to them in respect to their right to seek legal advice. In other words, some detainees may think that their ability to access counsel might be limited to a certain time of day, or day of the week. Others may believe that if they can’t afford a lawyer, they will have to go through the long and time consuming process of applying for legal aid. Many will mistakenly refuse their right to legal counsel, as time is clearly of the essence in this situation.

Detainees need to be made aware that free legal counsel, or duty counsel is available to them 24 hours a day, every day. Duty counsel is temporary legal counsel for the defendant to consult with until they are able to get a hold of their own lawyer or obtain legal aid. The police simply need to let the detainee know they will provide them with a phone number if they wish to speak to duty counsel immediately.

If the detainee expresses an interest in contacting counsel, whether at the roadside or in the police vehicle and they do not have access to a phone, the officer must make them aware that both a phone, as well as access to phone numbers or a phone book will be provided for them once they arrive at the police station. Again, the arresting officer must refrain from resuming any further questioning of the detainee until they have access to a phone; they have successfully contacted legal counsel and have completed consulting with them.

The police are also required to make a reasonable effort to expedite the contact with a detainee’s lawyer of choice, as well as find legal representation in the spoken language they require. If the lawyer of their choice cannot be reached immediately, police must wait until the detainee to has successfully made contact with their lawyer. The police may be in violation of the detainee’s rights if in the interim, they convince the detainee to settle instead with just the advice from the duty counsel.

The detainee should also be informed of their right to privacy when contacting counsel, and should be given the opportunity to consult with a lawyer in a secure and private area. As such, the conversation with their lawyer should always remain confidential.

One popular misconception is that detainees are only allowed one phone call. In Canada, there is no law that limits them to a single call, and they are free to make as many calls in succession as is necessary.

Often times an accused individual is often unaware of their right to call a lawyer at any time throughout the process of an arrest. Many assume they are not allowed to request a call to counsel until the arresting officer advises them of their opportunity to do so.

For free answers to your questions about how we can help if you have been arrested for DUI, please call us at (519) 977-5500 or complete this online contact form.